The Canadian Securities Administrators (CSA) and the Investment Industry Regulatory Organization of Canada (IIROC) have published guidance for crypto asset trading platforms (CTPs) with respect to advertising and marketing activities that may be considered to breach securities legislation and guidance on the appropriate use of social media by CTPs. The Staff Notice was published in reaction to the CSA’s and IIROC’s observation of marketing and advertising activities by CTPs that breach securities legislation or raise investor protection or public interest concerns.
Staff Notice 21-330 – Guidance for Crypto-Trading Platforms: Requirements relating to Advertising, Marketing and Social Media Use (Staff Notice), jointly published by the CSA and IIROC on September 23, 2021, includes:
a discussion of statements in advertising and marketing materials that could be considered false or misleading, including examples of non-compliant statements;
warning against the use of gambling-style contests, promotions or schemes, such as the offering of bonuses or rewards based on the level of trading; and
guidance on how to ensure a CTP’s social media marketing activities are done in compliance with applicable rules.
The focus of the Staff Notice is on CTPs that are subject to dealer registration provisions of securities legislation. The Staff Notice is aimed not only at CTPs that have registered as a dealer under Canadian securities legislation, but also at platforms that have or will be applying for registration as a dealer but are not yet registered, as well as existing registrants that are considering setting up a CTP.
Please see our April 2021 Blakes Bulletin: Canadian Securities Regulators Deliver Bear Hug to Crypto Asset Trading Platforms Operating in Canada and our June 2021 Blakes Bulletin: OSC Flashes Further Warnings to Non-Compliant Crypto Asset Trading Platforms and Initiates First Enforcement Actions for more information on the developing regulatory landscape in Canada for platforms that facilitate the trading of digital assets, including foreign-based platforms that have clients in Canada.
FALSE OR MISLEADING ADVERTISING
The Notice reminds platforms that securities legislation and IIROC rules prohibit false or misleading statements in advertising or marketing materials, including any statement:
that suggests that a CTP is registered under securities legislation where this is not the case;
that suggests that a securities regulatory authority or regulator has approved or endorsed the CTP, any products offered on the CTP or any statements made by the CTP; or
that is untrue or omits information necessary to prevent the statement from being false or misleading in the circumstances, if the statement is about any matter that a reasonable investor would consider relevant or important in deciding whether to enter into or maintain a trading or advising relationship with the CTP.
CTPs are also reminded that other requirements can limit how a CTP markets itself, such as the obligation to treat their clients fairly, honestly and in good faith, as well requirements relating to know-your-client, know-your-product and conflict of interest disclosure obligations.
The Staff Notice includes specific examples of statements that may be offside applicable rules in certain circumstances, including:
paid celebrity endorsements;
statements suggesting that the platform is an “exchange” or “marketplace” if it is not recognized as such under applicable Canadian law or exempt from recognition; and
statements that the platform does not charge commissions if the platform earns compensation in other ways, such as taking a markup on prices charged or monetizing order flow, or charges commissions on some but not all products.
GAMBLING-STYLE CONTESTS, PROMOTIONS OR SCHEMES
The Staff Notice calls particular attention to compliance issues with contests, promotions, bonuses and time-limits to encourage investors to engage in trading and to act quickly for fear of missing out on an investment opportunity or a reward. Such strategies may inappropriately encourage investors to engage in excessively risky trading. They may be offside a dealer platform’s obligation to treat clients fairly, honestly and in good faith or to assess suitability of an investment or trading strategy.
USE OF SOCIAL MEDIA BY CTPS
The use of social media by CTPs can raise concerns around compliance with obligations to retain records and supervise use of social media by the platform or its personnel. CTPs are required to adopt appropriate policies and procedures governing the use of social media for marketing, including to ensure appropriate supervision by a designated person, record retention and compliance monitoring.
The Staff Notice is just the latest step in the ongoing effort by Canadian securities regulators and IIROC to ensure that crypto asset trading platforms that operate in Canada do so in compliance with existing Canadian rules applicable to dealers and/or marketplaces. CTPs seeking registration as a dealer or recognition as a marketplace under applicable Canadian securities legislation should consider their marketing practices in light of the Staff Notice, and can expect regulators to consider marketing practices as part of their consideration of the platform’s overall business.
For further information, please contact:
Chris Barker 416-863-2710
Alex Moore 416-863-2754
or any other member of our Capital Markets group.
Blakes and Blakes Business Class communications are intended for informational purposes only and do not constitute legal advice or an opinion on any issue. We would be pleased to provide additional details or advice about specific situations if desired.
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